Wills Flashcards
Will Execution Requirements
Execution of a valid will requires
1) writing concerning distribution of property upon death
2) signed by testator or someone else at his direction in his presence
3) witnessed by 2 disinterested individuals both present at the same time
4) witnesses sign during testator’s lifetime, and
5) witnesses understand they are signing the testator’s will
After Jan 1., 2009, a will that fails to comply with witnessing requirements may be admitted if clear and convincing evidence is produced that the testator intended the doc to be her will
Validity of a Will under CA Law
A will in CA is valid if valid under
1) CA law
2) law of the state where will was executed, or
3) law of state where testator was domiciled @ death
Holographic Wil or Codicil
A holographic will is handwritten and meets signing requirements, but fails to comply with witnessing requirements.
In CA, the material terms must be in the testator’s handwriting. Material terms are the names of the beneficiaries & the gifts they’ll receive. Holographic will doesn’t need to devise the entire estate. The undevised portion will pass through intestacy.
Lack of date doesn’t invalidate the will unless:
1) there’s an issue w/testamentary capacity, OR
2) possibiltiy that two wills that are to be probated are inconsistent. Instrument will be invalid as to inconsistent portion
Modification of a Will by Codicil
Must be intent to revoke a will through codicil.
Codicil = instrument made after will is executed that modifies/revokes will. Must satisfy same will formalities. Courts will consider original will to be executed on same date as valid codicil.
Acts of Independent Significance
A court will use independent acts of significance to fill in the gaps of a will.
Incorporation by Reference
A document can be incorporated into a will if it
1) existed at time will was executed
2) sufficiently described in the will, and
3) testator intended to incorporate it
Testator Gift of CP & SP
Testator can only gift his share of CP.
Married testator can devise any SP she owns.
Revocation by Physical Act
A will is revoked by physical act if
1) testator intended to revoke will AND
2) will is burned, destroyed, torn, or cancelled by the testator.
A duplicated will is also revoked if one of the duplicates is revoked by physical act.
Revocation by Subsequent Instrument (Will or Codicil)
A testator can revoke a will by subsequent valid will or codicil.
Revocation by Divorce
In CA, gifts to a spouse are revoked upon divorce.
Dependent Relevant Revocation
Doctrine that cancels a revocation testator made under a mistaken belief of law or fact.
Applies when testator would not have revoked BUT FOR mistaken belief that a different will would be valid
Revival of Revoked Will & Republication by Codicil
Will revoked by physical act will be revived if testator shows intent for revival.
Will revoked by subsequent instrument can be revived if testator republishes the instrument
Testamentary Capacity
To have sufficient capacity to execute a will, a testator must be
1) someone at least 18 YO,
2) who understands the nature and extent of her property and
3) natural objects of her bounty
Appointment of a conservator doesn’t prove lack of capacity.
Interested Witness
Any gifts to interested witnesses are presumed invalid., unless witness can overcome presumption.
Interested witness only takes intestate share
Undue Influence
Occurs when a person exerts influence that overcomes testator’s free will and judgment
Prima facie case:
1) testator weakness (physical, mental, financial) that makes him susceptible to influence
2) wrongdoer had access to testator & opportunity to exert influence,
3) wrongdoer actively participated in drafting will, and
4) unnatural/unexpected result
WAPR!
Affected provision is invalid
Common Law Presumption of Undue Influence
Established if
1) confidential relationship existed b/w testator & wrongdoer
2) wrongdoer actively participated in drafting will, and
3) unnatural result
Affected provision is invalid
CAR!
CA Statutory Presumption of Undue Influence
Established if testator makes donative transfer to
1) person who drafted will
2) care custodian
3) peron in fiduciary relationship
4) spouse, partner, employee, or related by blood to someone above, or
5) partner, SH, employee of law firm where drafter has ownership interest
Gift to wrongdoer lapses
Blood Drafts Care Relationship or Partner
Intestate Distribution of CP
Surviving spouse entitled to 1/2 of decedent’s community & quasi-community property.
Intestate Distirbution of SP
Surviving spouse is entitled to either:
1) all of the decedent’s SP, if there are no surviving issues,
2) 1/2 of SP if decedent left one issue, or
3) 1/3 of SP if decedent left two or more issues
Omitted Spouse
Surviving spouse not mentioned in will executed before marriage is entitled to share of SP that spouse would’ve received under intestate, but not more than 1/2 of entire SP.
Exception: if surviving spouse:
1) intentionally ommitted,
2) was given property outside of will, or
3) ommission was consistent with valid prenup
Omitted Child
Surviving child not mentioned in will executed before birth/adoption is entitled to intestate share unless
1) intentionally ommitted,
2) transfer outside of will, or
3) testator left substantially all of estate w/surviving parent of the omitted child
Child not mentioned in will executed AFTER BIRTH is entitled to share of estate only if decedent was unaWare of existence/believed child to be dead
Ademption
When a specific item is no longer in the testator’s possession at the time of her death, that devise fails by ademption.
CA Exceptions to Ademption
1) when stock is changed to another form
2) when executor of estate sells property
3) when testator receives condemnation proceedings
Adopted Children
Treated the same way as biological children for the purposes of intestate succession.
Per Capita by Representation Distribution
Estate is divided into as many equal shares as there are surviving issues.
Lapse
If beneficiary predecessors testator, gift lapses & returns to residual estate (whatever is not specifically devised in will)
CA Anti Lapse Statute
Gift won’t lapse & will pass to deceased’s issue, BUT ONLY IF if devisee is blood relative (not spouse).
Per Stirpes Distribution
Estate is distributed equally among beneficiaries. If beneficiary predeceases testator, their share passes to surviving descendants (also equally distributed among them). If no surviving descendants, remainder goes to other beneficiaries.
